In our post-COVID world, telesales and ecommerce is more important than ever. But the Telephone Consumer Protection Act (“TCPA”) continues to pose a serious threat to legitimate businesses that supply information to consumers at their request.  Specifically, the TCPA requires express written consent for marketing content, which can make it challenging for a business to communicate with a consumer where—for instance—the consumer places an inbound call to the business and then asks for subsequent marketing content orally over the phone.

While a battle rages among experts as to whether recorded oral consent can constitute written consent—or just a signature on an agreement that must otherwise be in writing under ESIGN— whether or not a return call/text supplying the information the consumer sought even constitutes marketing remains an even more important open question.

At least one case recently held, for instance, that a call made to supply information regarding a food or service a consumer specifically asked for might yet be telemarketing. See Mantha v. Quotewizard, Civil No. 19-12235-LTS, 2020 U.S. Dist. LEXIS 45481 (D. Mass. March 16, 2020). But that doesn’t seem to be a correct articulation of the law following the FCC’s rulings in the area to the effect that responses to consumer requests for information—even if they contain marketing content—are not telemarketing for purposes of the TCPA. See FCC’s RILA Declaratory Ruling.

In Saunders v. Sunrun, Inc., Case No. 19-cv-04548-HSG, 2020 U.S. Dist. LEXIS 144053 (N.D. Cal. Aug. 11, 2020) the district court fully and properly employs the FCCs RILA ruling in a manner that has been rarely seen.

In that case the Plaintiff submitted an inquiry to Sunrun “attempt[ing] to get a quote about [its] solar products.” As a result of the submission, Sunrun sent a text message reading:

Thanks for your interest in Sunrun! Next step: Please send over your electric bills. We’ll use this history to estimate your solar savings. To share your utility usage and bill history with Sunrun, please follow the below link: http://mysunrun.com/#/share-energyusage?opptyId=0060d00001sLk8HAAS&email=curtiss@nedco.com&zipCode=89128&providerId=1662

In a vacuum this message might appear to be marketing since it is plainly advising of the availability of a good or service. But in the context of a consumer who had just requested information about solar products, the Court found this was merely an informational/transactional message. In other words, the mere inquiry by the consumer for information about the seller’s product allowed the seller to send a message offering more information about how to obtain that good or service.

Notice this is not a DNC case—the consumer’s request would likely qualify as an “inquiry” under the DNC rules, but Saunders holds that the message was not marketing at all. And that’s critical. Since the message was not marketing, not only do the DNC rules not apply the TCPA’s requirement of express written consent does not exist. All that the seller needs to show if the message is deemed informational is that the “called party” supplied the number directly in requesting information-a showing that can easily be made in most instances.

Zooming out, cases like Saunders have application anytime a consumer seeks information in a manner where written consent cannot be obtained. Applied broadly, a business can leverage Saunders to permit text messages to consumers that reach an inbound call center, or that otherwise have requested information in a manner short of supplying formal express written consent.

It is worth nothing that the Defendant in Saunders actually lost its motion to dismiss because the Plaintiff specifically asked defendant not to send text messages. It is important to note, therefore, that even if proper consent is obtained to send a consumer information contacts must stop immediately where a consumer asks not to receive that type of contact. Remember—the TCPA’s revocation rules apply regardless of whether the message is marketing or informational. The level of consent required is different but a consumer can yet revoke their consent in any reasonable manner, at least until a contract is formed.